1. In our opinion this order is wrong. It is true that Iswari Dassi had only a life-interest in her husband's estate, and that on her death the property would not go to her heirs, but the heirs of her husband.
2. It is, however, settled law that a Hindu widow, although she takes in some respects only a qualified interest in her husband's estate, fully represents that estate, and that the succeeding heirs would be bound by a decree properly and fairly obtained against the widow; see Katama Natchiar v. The Rajah of Shivagunga 9 Moo. I.A. 539, and Hari Nath Chatterjee v. Mothurmohun Goswami I.L.R. 21 Cal. 8. As the succeeding heirs would be bound by a decree properly obtained against the widow, so they would have the benefit of any decree obtained by her. Section 361 of the Code of Civil Procedure provides that the death of the plaintiff shall not cause a suit to abate if the right to sue survives.
3. We think it is impossible to say that the right to sue in this case does not survive. Iswari Dassi did not bring the suit on any cause of action personal to herself, nor did she seek any benefit for herself only. She sued as representing her husband's estate; and the property, if recovered, would continue to appertain to that estate, and would, on her death, go with the rest of it to the succeeding heirs. These heirs, although they do not claim through her, are, we think, for the purposes of the suit, her legal representatives within the meaning of Section 365. They represent in succession to her the estate, which she in her lifetime represented; and if the right to sue survives, as we think it undoubtedly does survive, they are the only persons who can proceed with the suit. No case directly in point has been cited, but in the case of Ramkishore Chuokerbutty v. Kallykanto Chuckerbutty I.L.R. 6 Cal. 479, it was held that the heirs of a deceased husband were the legal representatives of the widow under Section 234 of the Code. In that case the widow had sued to recover property as part of her husband's estate, of which she had been deprived, since her husband's death. The suit was dismissed with costs. The defendants took out execution for the costs against property, in which she had a life interest, and she died while the execution proceedings were going on. The heirs of the husband were substituted in her place and objected that the property attached was not liable. It was held that as she sued as representing her husband's estate, and as the property, if recovered, would form part of that estate, the costs were a legal charge upon it, and that the objectors, having succeeded to the estate by right of inheritance, were liable to satisfy the decree as legal representatives under Section 234 of the Code.
4. If in this case the Subordinate Judge had made, as he might have made, an order for costs payable out of the deceased plaintiff's estate, there could be no doubt, we think, that those costs would have been recoverable out of the estate, which she took as heir of her husband, and which on her death went, to those heirs.
5. We must hold, therefore, that the order of the Subordinate Judge is wrong, and that it must be set aside; and that there must be an order directing that the petitioners be placed on the record in the place of the deceased plaintiff, and that they be allowed to proceed with the suit.
6. The petitioners will get their costs.